REGULATORY SCRUTINY BOARD OPINION Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence

EUROPEAN COMMISSION
SEC(2022) 150
1.12.2021
REGULATORY SCRUTINY BOARD OPINION
Proposal for a Directive of the European Parliament and of the Council on
combating violence against women and domestic violence
COM(2022) 105
SWD(2022) 60-63
Offentligt
KOM (2022) 0105 - SEK-dokument
Europaudvalget 2022
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This opinion concerns a draft impact assessment which may differ from the final version.
Commission européenne, B-1049 Bruxelles - Belgium. Office: BERL 08/010. E-mail: regulatory-scrutiny-board@ec.europa.eu
EUROPEAN COMMISSION
Regulatory Scrutiny Board
Brussels,
RSB
Opinion
Title: Impact assessment / Preventing and combatting violence against women and
domestic violence
Overall 2nd
opinion: NEGATIVE
(A) Policy context
One woman in three in the EU has experienced some form of physical or sexual violence.
One in 20 has been raped. Women get harassed online. In addition, the COVID pandemic
has led to an increase in domestic violence. The 2011 Istanbul Convention aims to prevent
violence against women and domestic violence, to protect victims and end the impunity of
perpetrators. The Convention has been signed by all Member States and ratified by 21 so
far. EU accession to the Convention has been reviewed by the Court of Justice of the
European Union, which recently ruled on its modalities. This initiative aims to review the
existing EU policy framework on violence against women and domestic violence and to
pursue the objectives of the Istanbul Convention within the area of EU competences.
(B) Summary of findings
The Board notes the efforts made to improve the report in response to the Board’s
previous opinion.
However, the Board maintains its negative opinion, because the revised report still
contains the following significant shortcomings:
(1) The baseline does not sufficiently reflect the impact of several actions at EU and
Member State level.
(2) The report is not sufficiently clear on the overall objective to be achieved. The
need for a comprehensive approach is not sufficiently justified.
(3) The concrete measures envisaged and for which type of crime and victim under
each option are unclear. It is not clear on what basis specific measures are
combined in the different options and whether the structure of the options
ensures that the best possible set of measures is selected as the preferred option.
(4) The revised analysis of costs and benefits does not fully incorporate the revised
set of options. The comparison of options is based on unclear and debatable
criteria and a biased scoring methodology.
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(5) The report does not sufficiently assess the proportionality of the preferred
option, including the chosen comprehensive lex specialis approach.
(C) What to improve
(1) The report is not sufficiently clear on the extent to which Member States have, de
facto, taken or initiated measures to comply with the requirements of the Istanbul
Convention (and other international obligations). While the report now includes a gap
analysis, it should bring out more clearly where individual Member States still lack
measures to comply with the Istanbul standards (including the 6 Member States that have
not yet ratified the Istanbul Convention). Possible best practices observed in some Member
States and going beyond the Istanbul requirements could be added in a second step. This
differentiation is critical to allow a proper assessment of the scale of the problem and its
evolution under the baseline.
(2) While the report encourages Member States to extend the envisaged minimum
standards for female victims to men and non-binary people victims, it still needs to justify
more convincingly why an all victims’ inclusive approach should not also guide the
problem analysis of the current initiative. Alternatively, it should more systematically
demonstrate that violence against women has specific causes and consequences that need
to be tackled by specific measures. For instance, as regards the problems of cyber violence
and harassment at work (and irrespective of the fact that women represent the largest
victim group) the report needs to better argue why all affected victims should not benefit
from the envisaged measures. The report should also better demonstrate why these
problems cannot be tackled via existing horizontal instruments (e.g. Victims’ Rights and
Gender Equality Directives). The argued absence of a gender-sensitive or holistic approach
does not, per se, imply ineffectiveness of the existing horizontal legal instruments, in
particular as their full evaluation is still to be carried out. As regards sex-based harassment
in relation to work, the size of the problem remains unclear as most Member States seem to
have taken action that is broader than in EU law.
(3) While the report provides a more developed baseline, it continues to consider that
many measures under the baseline – both at Member State and EU level – are ineffective,
without providing a convincing and evidence-based justification. The report acknowledges
that prevalence rates tend to change very slowly over time and that a visible impact in
terms of a reduction in prevalence rates can realistically be expected only in the long run.
However, this reasoning is not consistently applied when assessing the impact of adopted
measures at Member State level, including those taken by Member States to ensure
compliance with the Istanbul Convention or likely to be taken by Member States in
absence of further EU measures. The report should therefore better acknowledge and
integrate more consistently these impact delays (in terms of observed changes to
prevalence rates) when assessing the effects of baseline measures (and also later when
assessing the impact of options). On that basis, the report should clarify how the above is
reflected in the baseline cost estimates and reconsider the significant impact differences
between the baseline scenario and the moderate option of ensuring compliance with the
Istanbul Convention.
(4) The report needs to be clearer on the overall objectives the initiative aims to achieve,
in line with the limits of the chosen legal basis. While it states that the objective is not to
achieve harmonised, equal protection everywhere in the EU, but to establish minimum
standards, this is not clearly expressed in the objectives section, which is of a more
ambitious nature. The report should therefore clearly explain the concept of minimum
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standards used and how it differs from more ambitious and best practice inspired
requirements (such as mandatory measures or the creation of a new legal basis for
minimum rules). It should clarify whether the requirements of the Istanbul Convention
(which the initiative ultimately aims to achieve) should be considered as such minimum
standards. In any event, the parallel use of the terms minimum standards and higher
minimum standards is confusing and should be avoided as this prevents a clear
identification and comparison of options.
(5) The report should be clear about the precise measures the options actually contain and
how they aim to tackle the problems for each of the relevant victim groups. It should
explain and justify which of the measures described in annex 5 are included in the various
options (in Table 5.1). For instance, it is not clear why measures on cyber violence and
sexual harassment are not also envisaged under the moderate policy option as otherwise
this option cannot tackle all the identified essential problems and is thus ineffective by
design. The report should also clarify why the right to claim compensation is not part of
the moderate option, despite being part of the Istanbul Convention.
(6) The report should explain more convincingly why alternative combinations of
measures to create alternative policy options, for instance combining selective soft and
hard law measures, have not been considered more thoroughly. The presented options
provide only very limited choice and risk not sufficiently anticipating alternative and
potentially better performing combinations of measures that may emerge in the political
discussions. The finding that only comprehensive legislative policy options can tackle the
identified problems needs to be better argued and substantiated with evidence.
(7) The analysis of impacts and costs and benefits needs to be presented more
completely in the main report and based on a more realistic set of assumptions. For
instance, while the report explains better the basis for the assumptions, the assumed
changes in prevalence reduction (ranging from 15% to 32% after 5 and 10 years
respectively) as a result of the new measures seem overly optimistic and not sufficiently
reflecting the revised set of measures and the timespan needed to observe structural
changes, argued elsewhere in the analysis. The report needs to acknowledge better that
some of the already adopted measures at Member State and EU level will have an impact
only in the years to come and that the new measures envisaged will become visible in
terms of changes to prevalence rates only in the long run. It should therefore more
transparently and critically assess the robustness of these and other benefit estimates,
including by testing more conservative estimates. This should help to avoid overestimating
the benefits and costs that can realisticly be expected from this initiative. The report should
assess impacts on SMEs in line with the ‘think small first’ principle and explain why no
exemptions or mitigating measures have been considered. This analysis should be also
informed by the views of SMEs.
(8) The report should present a much more balanced comparison of options on the basis
of ‘smarter’ objectives, clear and relevant criteria and a transparent scoring methodology
that is not designed to validate a pre-selected preferred option. The applied efficiency
concept is confusing as regards social impacts, ignores total costs and benefit-to-cost ratios
and inflates total net benefits. For instance, the report is not clear why the comprehensive
policy options get a 200% higher qualitative score for total net benefits even though these
are in absolute terms just 30% higher than for the moderate option. The report should also
justify why proportionality is assessed under effectiveness rather than in relation to
efficiency or as a self-standing category.
(9) The proportionality analysis should better reflect the clarified objectives (i.e.
minimum standards vs enhanced harmonisation), subsidiarity considerations (i.e. principle
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of primary responsibility of the Member States) and the limitations of the legal basis (i.e.
necessity of a comprehensive approach). It should be based on a more realistic and
balanced assessment and comparison of costs and benefits, clearly acknowledging the
significant effiency differences of options. It should better justify the necessity of a ‘lex
specialis’ approach given the broad scope of victims and crimes covered and the increased
risk of legal fragmentation and complexity as regards the existing horizontal legal
instruments. Overall, the report needs to provide a more convincing, balanced and
evidence-based analysis in support of its preferred option.
(10)The report should put data and evidence better into context, distinguishing between
stock and flow data and between maximum values (perception and survey data) and
minimum data (number of registered cases, convictions, etc.). It should acknowledge more
explicitly the limitations of the evidence base, given that evaluations of relevant legislative
instruments are on-going or will be carried out only the future.
(11)The costs table in Annex 3 should apply the required template. Costs for businesses
and public authorities should be clearly separated. Though recurrent costs for businesses
are estimated at EUR 1.9 bn, there is no distinction between administrative and adjustment
costs as required.
(12)While the stakeholder views have been better integrated, the report still needs to
present Member States’ views better, particularly as regards respect of subsidiarity and
support for the preferred option.
(13)The report still needs to define more clearly the differences between the concepts of
violence against women as opposed to gender-based violence against women and domestic
violence affecting all victims and use the clarified definitions consistently throughout the
report.
(D) Conclusion
The Board’s opinion is in principle final. The DG should seek political guidance on
whether, and under which conditions, this initiative may proceed further.
Full title Preventing and combatting violence against women and
domestic violence
Reference number PLAN/2020/9290
Submitted to RSB on 1 December 2021
Date of RSB meeting Written procedure
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EUROPEAN COMMISSION
Regulatory Scrutiny Board
Brussels,
RSB
Opinion
Title: Impact assessment / Preventing and combating gender-based violence against
women and domestic violence
Overall opinion: NEGATIVE
(A) Policy context
One woman in three in the EU has experienced some form of physical or sexual violence.
One in 20 has been raped. Women get harassed online. In addition, the COVID pandemic
has led to an increase in domestic violence.
The 2011 Istanbul Convention aims to prevent violence against women and domestic
violence, to protect victims and end the impunity of perpetrators. The Convention has been
signed by all Member States and ratified by 21 so far. EU accession to the Convention has
been reviewed by the Court of Justice of the European Union, which recently ruled on its
modalities.
This initiative (and the parallel fitness check) aims to review the existing EU policy
framework on violence against women and domestic violence and to pursue the objectives of
the Istanbul Convention within the area of EU competences.
(B) Summary of findings
The Board acknowledges the additional information provided in advance of the
meeting and commitments to make changes to the report.
However, the Board gives a negative opinion, because the report contains the
following significant shortcomings:
(1) The report is not sufficiently clear on what categories of victims and types of
violence would be covered by the initiative, and what would justify limiting the
application of certain measures specifically to women. It does not sufficiently
justify and substantiate with evidence the problems related to cyber-based
violence and harassment in the workplace.
(2) The report does not sufficiently reflect the evolving legislative context, in
particular the recent Court of Justice Opinion on the legal base and modalities of
the Istanbul Convention.
(3) The report does not present a complete baseline. It is not sufficiently clear on the
future effects of more recent measures taken by the Member States. It does not
assess the impacts that would result from further Member State implementation
efforts of the Istanbul Convention obligations in the absence of further EU action.
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The remaining scale of the problems and the need for further EU action is not
sufficiently clear.
(4) The report does not bring out clearly enough the available policy choices, the
rationale behind options and the content of the measures.
(5) The report is not sufficiently clear on the costs and benefits of the option
packages. The presentation of the limitations and uncertainties in assessing these
and the resulting benefit-to-cost ratios is underdeveloped.
(6) The report does not sufficiently assess the effectiveness and proportionality of the
preferred option. It is not clear why only a small part of the investments is
foreseen for prevention measures and why the option with the best benefit-to-cost
ratio is not selected.
(C) What to improve
(14)The report should better present the underlying legal framework, the respective
competences and measures put in place at national and EU level (including their interaction)
as well as the legal obligations resulting from the Istanbul Convention. On that basis, it
should clearly introduce the concepts used (violence against women as opposed to gender-
based violence; domestic violence affecting all victims) in a consistent manner. Where
certain types of crimes or victims are excluded from the scope (e.g. male victims), this
should be clearly presented and justified.
(15)The report should better explain and substantiate with robust evidence the identified
problems related to cyber-violence and workplace harassment. This should include an
explanation why the existing or proposed framework (e.g. the Victims Rights Directive and
the Digital Services Act) are insufficient in tackling these problems.
(16)The report should better reflect the evolving legislative context, in particular the recent
Court of Justice Opinion on the legal base and modalities of the Istanbul Convention. It
should be clear on the types of measures that could be taken at the EU level, in view of
Member States’ primary role and competence in this area. It should make clear that potential
EU action would be subsidiary to Member States’ action.
(17)The report should provide a better overview and analysis of Member States’ measures. It
should explain what has been achieved, what is missing and what can be considered best
practice. It should clearly identify and substantiate with evidence any remaining legislative
and implementation gaps (including by benchmarking against the Istanbul Convention
standards).
(18)The report needs to present a fully developed baseline to allow a proper assessment of
the scale of the problem. It should clarify to what extent the baseline reflects the legal
obligation of the Member States that have ratified the Istanbul Convention to adopt measures
to fulfil their commitments. In particular, it should assess the impacts that would result from
likely further Member State implementation efforts of the Istanbul Convention obligations
(e.g. follow-up on GREVIO recommendations) in the absence of further EU action. It should
also assess the effects of more recent national measures taken by the Member States, which
are expected to materialise only in the years to come (e.g. support services, protection
orders) but seem to have a large potential to tackle the problems. The report should clarify
how the above is reflected in the baseline cost estimates (leading to the figure of
EUR 290 bn).
(19)The report should be more explicit about the rationale behind the policy options and
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better explain the content of the proposed measures. It should bring out more clearly the
difference between the options and better justify the selection of the measures for each
option, including why it is considered necessary to go beyond the Istanbul Convention
standards. It should clarify whether other packages of measures have been considered. In
terms of the envisaged single legal delivery instrument, the report should better justify this
choice, including by explaining how coherence with the horizontal violence and protection
instruments will be ensured and additional legal complexities avoided.
(20)The analysis of costs and benefits and of impacts should be strengthened. It should
provide a clearer presentation of the costs that will be imposed on businesses and national
authorities, including substantive compliance costs and administrative costs. It should
acknowledge limitations and uncertainties in the cost and benefit estimates, such as reliance
on non-EU evidence sources (e.g. cost data from a UK study and effectiveness evidence
from a US example). It should clarify how to reconcile widely diverging cost estimates with
comparable scales of benefits.
(21)The effectiveness and proportionality analysis of the preferred option needs further
development. The report should justify why the option with clearly the best benefit-to-cost
ratio is not selected. It should also justify why only a small part of the investments is
foreseen for prevention measures despite the fact that these are likely to have the greatest
impact. It should explain why overall the impact of EU intervention would be more effective
than the interventions by Member States to date and in the future. Given that EU funding and
assistance has been available for years to support implementation, the expected value added
of any new intervention should be clearly demonstrated.
(22)The report should present more information on the views of stakeholder groups to
inform the discussion of problems and options. While the report is transparent overall about
the very limited support from the Member States, it should better explain why they seem to
see no need for further EU measures.
(23)The future monitoring framework should define what success would look like. It should
specify indicators to monitor the prevalence and types of violence against women and
domestic violence. It should indicate how data would be gathered and by whom. The report
should commit to conduct an evaluation and specify its timing.
Some more technical comments have been sent directly to the author DG.
(D) Conclusion
The lead DG must revise the report in accordance with the Board’s findings and
resubmit it for a final RSB opinion.
Full title Preventing and combating gender-based violence against women
and domestic violence
Reference number PLAN/2020/9290
Submitted to RSB on 15 September 2021
Date of RSB meeting 13 October 2021